My Lords, it is a pleasure to find myself speaking after the noble and learned Lord, Lord Hope—not for the first time. I am very worried about a particular aspect of the provisions we are considering today; namely, their impact on children. That is thrown into sharp relief by Clause 73, which requires that interveners pay the costs of their intervention in the circumstances outlined by the noble Lord, Lord Pannick, save for those which are “exceptional”.
We had a briefing here, which a number of noble Lords may have attended, from a number of children’s organisations representing children and manifesting their concern for the rights of children. The points that they made were extremely powerful, and I am glad to have the opportunity of raising them in this debate.
Following cuts to legal aid, children are increasingly forced to face court proceedings without a lawyer. In these circumstances, litigation brought by charities, NGOs and children’s rights organisations in the public interest is ever more important. Equally, in the new environment where they are increasingly faced by litigants in person, the courts increasingly value the contribution of third-party interveners providing expert advice to assist them on specific points of law and fact, including points on what is in the children’s best interests.
As the noble and learned Baroness, Lady Hale, said in a speech that she gave to the Public Law Project conference in October 2013:
“Once a matter is in court, the more important the subject, the more difficult the issues, the more help we need to try and get the right answer … interventions are enormously helpful”.
That is the testimony of a justice of the Supreme Court. As the noble and learned Lord, Lord Hope, pointed out, the noble and learned Baroness will not necessarily be deprived of such interventions in the Supreme Court, but I am sure that she was referring also to the value of interventions in lower courts.
Children and young people are disproportionately affected by the legal aid changes. They are often powerless to prevent the circumstances that give rise to the legal problems for which they seek resolution, such as homelessness, and they certainly cannot assert their rights without the help of a lawyer. They are either forced to fend for themselves as litigants in person without
the skills to do so, have their problems inappropriately channelled to overstretched and inadequate complaints procedures, or have them go unresolved altogether.
The effect of the proposals about which we are talking today will be to inhibit legitimate challenge, limit judicial discretion to act in the public interest and shield public agencies from effective scrutiny. Despite what the Minister said earlier, it is difficult to escape the feeling that these provisions curtailing the scope of judicial review are animated by a belief that applications for judicial review are somehow vexatious. However, consider the sort of cases that we are talking about—cases where highly vulnerable children and young people seek protection from abuse and exploitation. Those affected include homeless children and young people; children who have been sexuallyexploited or abused—how salient is that today?—trafficked children; those with mental health problems and learning difficulties; children in care, care leavers and children affected by care proceedings; and young refugees and asylum seekers. The changes we are considering will inevitably have a chilling effect on charities and other organisations that seek to protect children’s rights through court action in the sort of cases I have mentioned. I urge noble Lords to support the amendments, which would negate these provisions, Clause 73 specifically.